[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 21, 2010
No. 09-14357 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00132-CR-J-32-TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEVAR JAMES ANDERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 21, 2010)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Levar James Anderson appeals the district court’s order denying his motion
to withdraw his guilty plea, in which he argued that his plea was not knowingly
made due to his trial counsel’s ineffective assistance. Anderson pled guilty to
(1) knowingly distributing cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C) (Count 4); (2) knowingly carrying and using a firearm with an obliterated
serial number during and in relation to the offense charged in Count 4, in violation
of 18 U.S.C. § 924(c) (Count 5); and (3) knowingly possessing a firearm with an
obliterated serial number, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1) (Count
6). On appeal, Anderson argues that this guilty plea was not knowing and
voluntary because his trial counsel failed to provide him with discovery documents
before entry of the plea, gave him flawed advice concerning the § 924(c) charge,
and failed to recognize a possible defense to the § 924(c) charge.
“We review the denial of a request to withdraw a guilty plea for abuse of
discretion.” United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006)
(quotation omitted). Under this standard, we will only reverse a district court’s
decision if it is arbitrary or unreasonable. United States v. Buckles, 843 F.2d 469,
471 (11th Cir. 1988). For the following reasons, we conclude that the district
court’s decision to deny Anderson’s motion to withdraw his guilty plea was neither
arbitrary nor unreasonable.
After a district court has accepted a defendant’s plea, but before sentencing,
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a defendant may withdraw his guilty plea if he “can show a fair and just reason for
requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In determining whether
a defendant has shown a “fair and just reason,” a district court may consider the
totality of circumstances surrounding the plea, including the following factors:
“(1) whether close assistance of counsel was available; (2) whether the plea was
knowing and voluntary; (3) whether judicial resources would be conserved; and
(4) whether the government would be prejudiced if the defendant were allowed to
withdraw his plea.” Buckles, 843 F.2d at 472 (citation omitted). Here, the district
court determined that Anderson failed to demonstrate a “fair and just reason” for
withdrawing his guilty plea because, under the first two factors of the Buckles test,
he had close assistance of counsel and the plea was knowing and voluntary. We
agree.
With respect to the close assistance of counsel, at the hearing on the motion
to withdraw his guilty plea, Anderson testified that his attorney, David Makofka,
was available to answer his questions during the plea hearing and had met with him
when he was first arrested, as well as three or four more times at the jail. Anderson
also indicated at the plea hearing that he had an adequate opportunity to discuss the
plea agreement and consult with counsel. Anderson also stated during his plea
colloquy with the court that he was satisfied with Makofka’s advice and
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understood the terms of the plea. There is a strong presumption that statements
made during a plea colloquy are true. United States v. Medlock, 12 F.3d 185, 187
(11th Cir. 1994). Anderson has not satisfied his heavy burden to show that his
statements were false and that he did not have the close assistance of counsel at the
time of entry of his guilty plea. See United States v. Rogers, 848 F.2d 166, 168
(11th Cir. 1988).
With respect to whether a plea was knowing and voluntary, the district court
satisfies its obligation by addressing three core concerns underlying Fed. R. Crim.
P. 11 (“Rule 11”): “(1) the guilty plea must be free from coercion; (2) the
defendant must understand the nature of the charges; and (3) the defendant must
know and understand the consequences of his guilty plea.” United States v.
Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir. 2000) (quotation omitted).
Anderson argues that the district court erred in finding his plea knowing and
voluntary because his counsel was ineffective. See McCoy v. Wainwright, 804
F.2d 1196, 1198 (11th Cir. 1986) (explaining that a guilty plea is not knowing and
voluntary if the defendant does not receive “reasonably effective assistance of
counsel in connection with the decision to plead guilty”).
The record belies Anderson’s three allegations of ineffective assistance of
counsel. First, Anderson claims that counsel failed to provide him with discovery
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documents prior to the entry of his plea, but Makofka testified during the plea
withdrawal hearing that he believed he had provided such documents to Anderson
when he showed him video recordings of the drug transaction that were evidence.
Makofka also stated that there was “no question in [his] mind” that Anderson had
the documents by the date of the plea hearing.
Anderson next argues that counsel gave him flawed advice concerning the §
924(c) charge, specifically that Makofka erroneously advised him that he could be
convicted of violating § 924(c) based on the mere presence of a firearm during the
drug transaction. However, Makofka denied providing this advice at the plea
withdrawal hearing. Rather, Makofka testified that he had explained to Anderson
that if the jury found the presence of the firearm was for a purpose, and not merely
coincidental, he could be convicted of the charge. Makofka also testified that he
had multiple discussions with Anderson about the range of inferences the jury
could draw from firearm’s proximity to him during the drug transaction. This
testimony is supported by Makofka’s statements during the plea colloquy that
Anderson understood that the “carry and use” element of the § 924(c) charge could
be satisfied by constructive possession of the firearm, as well as Anderson’s own
statements to this effect.
Anderson’s final ineffectiveness claim that Makofka failed to recognize a
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possible defense to the § 924(c) charge—that the drug and gun transactions were
separate and distinct transactions—is also without merit. Anderson admitted under
oath during the plea hearing that he sold the firearm and drugs at the same time.
He also admitted the facts underlying his guilty plea, including that he knowingly
carried a firearm during the commission of a drug-trafficking offense. Given
Anderson’s admission and Makofka’s testimony that the gun and drug transactions
occurred “one right after the other,” defending the § 924(c) charge on the ground
that the gun and drugs were sold in two separate transactions would have been
unlikely to succeed at trial. See United States v. Timmons, 283 F.3d 1246,
1251–52 (11th Cir. 2002) (affirming a § 924(c) conviction because “it would flout
the purpose of the statute to hold anything but that the gun was carried ‘during and
in relation’ to the drug offense” when it was transferred along with the drugs in a
single transaction). Therefore, we conclude that Makofka’s failure to pursue this
defense did not fall below a threshold level of competence sufficient to satisfy the
Strickland standard. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984) (articulating the two-prong test for determining, in
post-conviction collateral proceedings, whether a defendant has been denied
effective assistance of counsel: (1) the defendant must show that the counsel’s
performance fell below the threshold level of competence; and (2) the defendant
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must show that the counsel’s errors, due to deficient performance, prejudiced his
defense such that the reliability of the result is undermined).1
Finally, with regard to all of Anderson’s ineffectiveness allegations,
Anderson argues that the district court should have credited his testimony over
Makofka’s based on consistencies between their testimonies. This argument is
unavailing. First, Makofka’s testimony was not consistent with Anderson’s
testimony in a number of respects. As discussed above, Makofka testified in
contradiction to Anderson’s testimony that (1) counsel did not provide him with
discovery documents until after he entered his plea and (2) counsel told him the
presence of a gun on the premises was sufficient to secure a § 924(c) conviction,
regardless of whether he sold the gun first. We give great deference to a district
court’s credibility determinations unless they are “so inconsistent or improbable on
[their] face that no reasonable factfinder could accept [them].” United States v.
Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (quotation omitted). See also
Buckles, 843 F.2d at 472. Anderson has not demonstrated any reason why the
district court’s decision to credit Makofka’s testimony over his own is not worthy
of our deference.
1
In Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985), the
Supreme Court held that the two-part Strickland test applies to challenges to guilty pleas
based on ineffective assistance of counsel.
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Because we conclude that Anderson has not shown that his counsel was
ineffective, we agree with the district court’s assessment that his plea was knowing
and voluntary. The magistrate judge reviewed with Anderson the elements of the
crimes with which he was charged at the plea hearing, and Anderson indicated his
understanding and submitted his plea. If the defendant received close assistance of
counsel and entered his plea knowingly and voluntarily, we need not give
“considerable weight” to the remaining Buckles factors. United States v.
Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir.1987).
In sum, the district court did not abuse its discretion in denying Anderson’s
motion to withdraw his guilty plea based on his trial counsel’s ineffective
assistance. The alleged deficiencies in counsel’s performance are contradicted by
the record, and, further, Anderson failed to show that he was prejudiced by the
alleged deficiencies. Accordingly, we affirm.
AFFIRMED.2
2
Appellant’s request for oral argument is denied.
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